On
November 27, 2017, the petitioner, Stephen E. Spiegelmann, an
inmate currently confined at Cheshire Correctional
Institution in Cheshire, Connecticut, filed a petition for
writ of habeas corpus, pursuant to 28 U.S.C. § 2254,
against the facility's warden, Scott Erfe.[1] The respondent
moved to dismiss the petition on March 2, 2018, arguing that
the petitioner has failed to exhaust his state court remedies
with respect to the claims raised in the petition.
Resp't's Mot. to Dismiss (“Resp't's
Mot.”) (Dkt. No. 12); Resp't's Mem. of Law in
Supp. of Mot. to Dismiss (“Resp't's
Mem.”) (Dkt. No. 12-1). The petitioner filed a
memorandum of law in opposition to the respondent's
motion on March 16, 2018. Pet'r's Mem. in Resp. to
Resp't's Mot. to Dismiss (“Pet'r's
Mem.”) (Dkt. No. 13). For the following reasons, the
respondent's motion to dismiss is GRANTED and the
petition for writ of habeas corpus is DISMISSED without
prejudice subject to refiling.

I.
Standard of Review

This
Court reviews a motion to dismiss a habeas petition according
to the same principles as a motion to dismiss a civil
complaint under Fed.R.Civ.P. 12(b)(6). See Purdy v.
Bennett, 214 F.Supp.2d 348, 353 (S.D.N.Y. 2002). To
survive a motion to dismiss, the petition “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The Court must accept as true the factual
allegations in the petition and draw all reasonable
inferences in the petitioner's favor. Id.

In
deciding a motion to dismiss a habeas petition, “[t]he
Court must confine its consideration to facts stated on the
face of the [p]etition, in documents appended to the
[p]etition or incorporated in the [p]etition by reference,
and to matters of which judicial notice may be taken.”
Williams v. Breslin, 274 F.Supp.2d 421, 425
(S.D.N.Y. 2003) (internal quotations omitted). “Where .
. . the [petition] was filed pro se, it must be
construed liberally with ‘special solicitude' and
interpreted to raise the strongest claims that it
suggests.” Hogan v. Fischer, 738 F.3d 509, 515
(2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d
116, 122 (2d Cir. 2011)). This principle does not, however,
apply to the legal conclusions that the petitioner draws in
the petition. Ashcroft, 556 U.S. at 678.

A
prerequisite to habeas corpus relief under § 2254 is the
exhaustion of available state remedies. 28 U.S.C. §
2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). The Second Circuit requires the district
court to conduct a two-part inquiry. First, a petitioner must
present the factual and legal bases of his federal claim to
the highest state court capable of reviewing it. Second, he
must have utilized all available means to secure appellate
review of his claims. See Galdamez v. Keane, 394
F.3d 68, 73-74 (2d Cir. 2005). The petitioner must litigate
all claims in state court before he may litigate those claims
in federal court. See Rose v. Lundy, 455 U.S. 509,
515-22 (1982). Failure to exhaust state remedies may be
excused only if “there is no opportunity to obtain
redress in state court or if the corrective process is so
clearly deficient to render futile any effort to obtain
relief.” Duckworth v. Serrano, 454 U.S. 1, 3
(1981) (per curiam); 28 U.S.C. § 2254(b)(1)(B).

In
Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), the
Second Circuit held that a district judge, when confronted
with a “mixed petition” containing both exhausted
and unexhausted habeas claims has discretion either to
dismiss the petition in its entirety or dismiss only the
unexhausted claims and stay the balance of the petition. In
some cases, as in Zarvela, a stay of the petition is
more appropriate because “an outright dismissal could
jeopardize the timeliness of a collateral attack.”
Id. at 380 (quoting Freeman v. Page, 208
F.3d 572, 577 (7th Cir. 2000)); see also Duncan v.
Walker, 533 U.S. 167, 181 (2001) (pendency of first
federal habeas petition did not toll limitations period under
28 U.S.C. § 2244(d)(2)).

More
recently, in Rhines v. Weber, 544 U.S. 269, 277
(2005), the United States Supreme Court held that staying a
mixed petition “decreas[es] a petitioner's
incentive to exhaust all his claims in state court prior to
filing his federal petition.” It permits a petitioner
to delay resolution of his federal proceedings. Id.
Therefore, the Court held that “stay and abeyance is
only appropriate when the district court determines there was
good cause for the petitioner's failure to exhaust his
claims first in state court.” Id. Even if he
had good cause for failure to exhaust, the district court
should not grant stay if the unexhausted claims are plainly
meritless. Id.

II.
Procedural History

The
history of the petitioner's state criminal proceedings
and post-conviction proceedings are not disputed.

On
October 17, 2001, the petitioner was convicted after a jury
trial of three counts of sexual assault in the first degree,
in violation of Connecticut General Statutes §
53a-70(a)(2), two counts of risk of injury to a child, in
violation of Connecticut General Statutes (Rev. to 1997)
§ 53-21(1), one count of risk of injury to a child, in
violation of Connecticut General Statutes (Rev. to 1997)
§ 53a-21(2), and one count of unlawful restraint in the
first degree, in violation of Connecticut General Statutes
§ 53a-95(a). State v. Spiegelmann, 81 Conn.App.
441, 443 (2004), Rep't Ex. F (Dkt. No. 12-10); Direct
Appeal R., Resp't Ex. A (Dkt. No. 12-5) at 32. The trial
court sentenced him to sixty years of incarceration.
Spiegelmann, 81 Conn.App. at 443.

The
petition appealed his convictions on three grounds: (1) the
trial court improperly permitted the state to introduce
highly prejudicial pornographic material seized from his home
without proof that the victim had been exposed to such
material; (2) the prosecutor engaged in impropriety during
cross-examination of the petitioner and during closing
argument; and (3) the trial court improperly admitted
prejudicial hearsay evidence under the constancy of
accusation doctrine. Pet'r's Appellate Ct. Br.,
Resp't Ex. B (Dkt. No. 12-6) at 3-4. The Connecticut
Appellate Court rejected the petitioner's claims and
affirmed the trial court's judgment.
Spiegelmann, 81 Conn.App. at 443. On April 7, 2004,
the Connecticut Supreme Court denied the petitioner's
petition for certification to appeal the Appellate
Court's decision. State v. Spiegelmann, 268
Conn. 921 (2004), Rep't Ex. H (Dkt. No. 12-12).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;At
trial, the state habeas court heard testimony from the
petitioner, McQuillan, Grudberg, two legal expert witnesses,
a forensic pathologist, and a forensic psychologist and
reviewed the criminal trial transcripts.
Spiegelmann, 2010 WL 3672347, *1. Afterwards, the
state habeas court denied the petition, concluding that the
petitioner had failed to prove either ...

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